ICE Might Be Violating Federal Law By Keeping Immigrants Detained During The Shutdown

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Article | January 9, 2019 | Hamed Aleaziz | BuzzFeed News

A lengthy government shutdown over border wall funding has potentially put Immigration and Customs Enforcement at risk of violating a more than 100-year-old law that could not only require the release of “non-dangerous” individuals in the agency’s custody but also stop it from continuing to arrest and detain certain people, according to former senior ICE officials and experts.

The potential violation could complicate ICE’s operations at a time when President Donald Trump has argued that the shutdown is necessary to force Democrats to implement tougher immigration policies, such as building a wall on the US–Mexico border.

CE contracts with nonfederal detention facilities, like county jails and private detention contractors, across the country to hold individuals detained by immigration agents. The agency pays for the bed space in various ways, including monthly payments or, in some cases, in advance.

As of Jan. 1, the agency was detaining more than 48,000 individuals, which is 8,000 more than the levels that had been provided for by the now-expired congressional funding. But nearly three weeks after its funding lapsed because of the shutdown, ICE has likely run out of money to pay contractors for the detention space it uses.

And while ICE has some non-appropriated funds it can lean on, those are not enough to pay for the overall detention space for more than a few weeks, said Kevin Landy, who was appointed during the Obama administration to run ICE’s Office of Detention Policy and Planning, a position he held for more than six years, up until 2017.

“It's just a matter of time before ICE runs out of money to pay for detention beds, if it hasn't already,” Landy said. Already, some county governments, like in Tulsa, Oklahoma, have told BuzzFeed News that ICE has notified them that its monthly payment for the individuals in their custody will not be made on time.

Private detention companies, like CoreCivic, have also been notified by ICE that payment will be delayed until the government reopens. Both CoreCivic and some county governments, like in Tulsa; Glades, Florida; and York, Pennsylvania, have maintained that they can continue to hold ICE detainees without payment because they know the government will eventually pay.

But continuing to keep certain individuals in their custody may be a violation of a law first enacted in the 1980s known as the Antideficiency Act.

The law makes it illegal for a contractor to provide the government free services in anticipation of future payments, unless the services are necessary to protect human life or property, according to Landy.

“ICE cannot legally ask detention facilities to hold nondangerous individuals it has arrested if ICE has no funds to pay the facilities for doing so,” he said.